Updated: March 14, 2016 by Justin S. Kline, Esq.
We've all seen the television news magazines exposés on babysitter surveillance (also known as "nanny cams"). But more and more, unfortunately, the news pieces are likely to feature "Granny Cams" instead. As the U.S. population ages, more people are headed to nursing homes or have regular home health care. And, just as children are in a vulnerable position in relation to their caregivers, nursing home patients are likewise vulnerable and unable to fully communicate.
A camera may be just what you need to put your mind at ease. Supporters of Nursing Home Cameras believe that they could weed out elder abuse by nursing home employees as well as document poor care and neglect. Not surprisingly, nursing home owners believe that this surveillance is an invasion of privacy of residents and staff.
Is the use of a "Granny Cam" the same, under the law, as a "nanny cam"? Can it lead to civil lawsuits or a criminal investigation or charges? Unfortunately, the law in this area is not uniform across all 50 states and many of the legal issues have not been dealt with yet by the courts. You will probably need to have a specific conversation with a licensed attorney in your area to determine how to approach nursing home surveillance.
Visible video cameras (not hidden in any way) are generally not illegal if they are in a non-private place. If the camera records sound as well as video, you must comply with federal and state wiretapping and eavesdropping laws. You will need consent of one or all parties to any recorded conversation, depending on your jurisdiction.
Hidden cameras are a little stickier. There is a federal law which makes it a crime to secretly capture photo or video images of people in places and situations in which they have an expectation of privacy, such as bathrooms, dressing rooms, locker rooms, hotel rooms and tanning salons. A nursing home bedroom would probably make the list as well. Most states now have laws similar to the federal laws.
In the case of a "granny cam" though, some additional concerns are raised. The two issues often raised in this situation are (1) the ability of the nursing home patient to consent to the surveillance and (2) the privacy of any roommate. If the patient has not been deemed incompetent by a court, he or she may be able to legally consent to any recording. If the patient is less than competent for any reason, a legally-appointed guardian or attorney-in-fact (someone given authority by power of attorney) may be able to give consent.
In some states, consent by someone other than a competent resident may not be adequate to support the recording. The second issue is a privacy concern. Many nursing homes have double rooms. In that case, it is the best practice to obtain written consent from any roommate or legal representative of the roommate. The surveillance could very well record the dressing and undressing of both patients as well as bathing and medical treatments.The state attorney general in New York has used hidden cameras (with the consent of the patient's family) to record and prosecute elder abuse.
A few other states (New Mexico and Texas) have specific laws which provide the requirements for use of a "granny cam". The factors include notification of the nursing home of the use of the camera and consent of any roommate or representative of the roommate. Although some states, like Virginia, have adopted nursing home licensing regulations which cover video surveillance, most states have not passed specific legislation regarding nursing home surveillance. The resident (or, more likely, his or her family) must perform the installation and pay for any maintenance costs. Ultimately, your goal with a granny cam surveillance system is to prevent any abuse or neglect of your loved one – and not to catch an employee perpetrating a crime upon the patient.
So, you may be best off considering a heart-to-heart conversation with the facility administration about your desire to perform surveillance. And don't forget to talk to your loved one's roommate or his family about obtaining consent from them as well.
This article is meant as a general introduction to the state of the law concerning electronic surveillance and its implications. This article is for general informational purposes only and does not constitute legal advice. You are strongly advised to seek legal advice from a lawyer in your state when you are confronted with a legal issue in this area.
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